POST-CONVICTION * CRIMINAL APPEALS * CRIMINAL DEFENSE

Well it's a new year and Conviction Solutions is still here. Actually we're busier than ever which is why this blog has not been very active...

Anyway, wanted to post here we recently had the opportunity to help with something a little different: a case of a suspended driver's license due to a lack of an updated medical report which arose from the Department of Motor Vehicle's belief that the individual had epilepsy which affected the ability to drive. It was a time sensitive matter but with our previous and extensive State of Nevada government experience we were able to get up to speed and handle the matter.

Little background - in Nevada, if the DMV receives information from a doctor (or really virtually any source) that there may be a concern over your ability to drive safely, they can require a yearly medical letter from a doctor that says whether you can in fact drive safely. This can arise in cases of epilepsy, but the Nevada law on the topic is really broad and basically covers any medical condition where there is a risk of a seizure or loss of consciousness. In particular, where there has been a seizure or loss of consciousness within a rolling three year period, the letter yearly letter requirement can be imposed by law. While keeping the roads safe is a noble goal, if you are the target of this requirement you might rapidly find that it is a pain in the butt - the time and expense of getting a yearly medical check in this era of skyrocketing insurance costs (if you even have insurance) can make compliance an expensive headache.

This is all the more true if you in fact feel you are not a medical risk to pass out while driving. To get to the point, we attended the administrative hearing at the Nevada DMV. The hearing is presided over by one of the DMV's own administrative law judges, and generally follows a relaxed trial protocol: You are allowed to make a brief opening statement, present documents and witnesses, and generally make your case. We are proud to say we were able to get the driver's license reinstated. How can this be? Amazingly, the DMV had mixed the individual's paperwork up with someone else. Unfortunately, due to "policies" the DMV refused to provide any of its evidence prior to the hearing, so we were not able to identify this error until the time of the hearing. But the important part here is that such errors do happen and you can win if it happens to you.

If you or a loved one is facing a similar driver's license issue, we may be able to help. Of course, each case is different and any statement of past results does not guarantee, warrant, or predict future cases.

There's been some recent changes with regard to how criminal appeals are presented in Nevada that may affect you if you have a case under review by the Nevada Supreme Court or Court of Appeals. In this recent order, the Nevada Supreme Court nearly eliminated the types of cases which are subject to "fast track" review on appeal in Nevada.

Previously, most criminal appeals (i.e. those immediately after conviction but also those after the denial of post-conviction relief) were so-called fast track appeals. This meant that, in all but the most serious cases, the briefing was presented in a very limited fashion. The number of pages was limited and thus, by nature, so were the number of issues or length of discussion that could be presented. From a consumer standpoint, there was one other very notable concern with fast track appeals: the trial attorney was REQUIRED by the rules to draft the fast track statement, which is essentially the opening brief. Suffice it to say,even an organization of Nevada criminal defense attorneys has recognized that many skilled trial attorneys may not be as skilled at appellate work, or may not want to do it at all.

There is good news if you need criminal appeal services. As noted above, appeals docketed after June 10, 2016, are subject to the new fast track rules. The main change is now, instead of most appeals being the fast track variety, most will instead not be. Fast track appeals are now limited to Category D and E felonies and certain C felonies only. Every other case, including all Category A and B felonies will be full briefing cases. This means #1, a competent appellate attorney has every tool available in which to present your appeal, but also #2, that you are NOT required to use your trial attorney for your appeal unless that appeal remains under the revised fast track rules. This really opens up the options available for criminal appeals in Nevada, as you now can more easily select the attorney of your choice.

On a final note, even IF an appeal is subject to what's left of the fast track rules, there is an additional new rule that arguably requires exemption from the fast track program unless the sole reason for seeking the exemption is to delay the proceedings. Obviously, any competent appellate attorney could craft an exemption request that relies on something other than mere delay in virtually any given case. As a result, practically every criminal appeal can now be fully briefed by any lawyer retained by the appellant.

The purpose of this post is to point out important new rule changes regarding appeals and not necessarily to present fast track appeals in a negative light. They occasionally do have their advantages, such as (hopefully anyway) being decided faster, and the limited nature of the briefing can result in cost-savings to the consumer, particularly where retained trial counsel has no choice but to file such an appeal if it is requested. But if you or a loved one have been convicted of a crime, especially of more serious-type felonies, it really makes more sense to hire an attorney with a strong background in appellate work. The new fast track rules increase free market choice of attorneys for consumers and lift the requirements that force trial attorneys to act as appellate attorneys, and therefore are a benefit to clients and attorneys alike.

Let's say you don’t like your sentence after a guilty plea or a trial. Is it too long of a sentence? Is it unfair or is the verdict wrong? Are there any other options? One important option includes filing an appeal.

Sentencing is a necessary process where a judge decides what punishment to give someone who is convicted or pleaded guilty (or no contest). Although some crimes have set punishments, most have varying windows, usually large, in which the judge can base the sentencing decision. This judicial discretion is based upon what he or she sees fit in your particular case based on what your lawyer and the prosecuting lawyer bring to the table in the sentencing hearing. Mitigating evidence can make the sentence more lenient by making you less blameworthy but ultimately it is the judge's call as to what they see fit for an appropriate sentence.

It is within your best interest to know with minimum and maximum sentencing in Nevada. Misdemeanors have a maximum of 6 months in CCDC and $1,000 in fines, gross misdemeanor a maximum of a year in CCDC and $2,000 in fines, and felonies can vary between probation and life in prison depending on the crime committed. In the hearing you have right to be present, to an attorney, to present evidence, to have the court presented with a substantially accurate pre-sentence report, or to propose alternate sentencing. If you feel that any of these have been violated then you may file an appeal. A notice of appeal that alerts the court that you want to appeal is due within 30 days of the written judgment of conviction being filed.

An appeal is when someone is found guilty and wants a higher court to review the case. When a person thinks their sentencing was unfair, too long or if inappropriate evidence was considered, then that person has the right to an appeal. If the appellate court decides that the sentence was in fact wrong or unfair, then the court may grant a new trial or a new sentencing hearing. However, if the court finds nothing wrong with the trial, then the conviction and sentencing stays the same.

I've been asked a ton of questions lately that sound something like this:

"Hey is the Department of Corrections giving everyone credit towards parole eligibility?""I heard inmates serving B felonies will start getting front end credit. What law is that?""How can I get credit towards MY sentence?"

Or just general inquiries about having "heard" changes were coming with how the Nevada Department of Corrections computes sentences. So I did a little digging and although there's no new statute that makes major changes, there has been a recent development that may be at the root of these inquiries. Before we get into that, a little (recent) history lesson concerning how the time to be served pursuant to criminal convictions in Nevada may be in order.

2007: The Nevada Legislature passed what was known at the time as AB 510 (Assembly Bill 510). Plenty has been written about it already but for today's lesson, it's important to note certain parts of that law were codified at NRS 209.4465. Part of what that bill did was allow inmates serving certain sentences in prison to earn credits towards their minimum parole eligibility date. Those provisions did not (and still do not) apply to inmates serving sentences for A or B category felonies.

2011: In 2011, AB 136 was proposed which would have extended the credits towards minimum parole eligibility provided by AB 510 to inmates serving Category B felony sentences. In Nevada, "B" felonies encompass a wide variety of relatively serious offenses and it is possible depending on the offense and any enhancements (i.e. using a deadly weapon as part of an offense) that an inmate serving time for a B felony could have a maximum sentence of as little as six years, or in excess of twenty years. So this could have affected a wide variety of offenses. Alas, AB 136 was vetoed by the governor and thus did not become law.

2013: In the 2013 session, SB 71 was proposed and passed, and it allows prison sentences to be aggregated. That is, where multiple sentences are involved, they are now added together to determine minimum and maximum parole eligibility. Ostensibly, this is to reduce the number of times an inmate would have a parole hearing, thus saving the State money. This only applies to sentences imposed after the law was passed, but inmates already serving multiple sentences are allowed to make an irrevocable election to have their sentences aggregated under NRS 213.1212. Whether it is a good idea for an inmate to do so is going to have to be the topic of a future post! In addition, SB 71 provided that credits earned towards minimum parole eligibility under the new law can only reduce the minimum sentence to be served by "not more than 58%." This would appear to mean an inmate given a 12 month minimum parole eligibility date would have to serve at least 153 days in prison regardless of how many credits he or she earned.

2015 - 2016: And now the main event! If you've been wondering who or what is a Vonseydewitz, the reference here is to a Nevada Supreme Court decision from 2015 in which the Court concluded that an inmate (Mr. Vonseydewitz) who was serving time for a B felony in the Nevada Department of Corrections was improperly denied credits towards his minimum parole eligibility date. How can that be, you may wonder, given the history above? Well, the rationale used to reach that result involves a fair amount of statutory interpretation, including an exquisitely fine distinction between two types of parole eligibility used in Nevada's criminal statutes. See pp. 3-4 of the decision. Thankfully, this is a blog post and we're going to focus more on practical effect than legal justification!

While this was an unpublished decision, it would appear it later gained some measure of endorsement by the entire Nevada Supreme Court because the Attorney General's Petition for En Ban Reconsideration (i.e. review by all members of the court) was not only denied, but resulted in an order signed by every Nevada Supreme Court Justice. In that Order, the Nevada Supreme Court purported to set forth exactly the limits of the Vonseydewitz decision, including a handy bullet-point list of which inmates could qualify for relief under the decision. Inmates who could be affected by the decision include those:

Who committed crimes between July 17, 1997, and June 30, 2007, and,

The sentence being served does not fall under "the parole limiting provisions of NRS 453.3405(1)." This would appear to mean inmates serving sentences for Trafficking a Controlled Substance as explained in NRS 453.3405 cannot benefit from this decision. But for all others, who meet the above and,

Who have nor already gone before the parole board for that sentence, which then may;

Obtain additional credits but only so far as credit was not already "applied retroactively pursuant to NRS 209.4465(8)", i.e. under AB 510 discussed above.

So what should you do if this information could apply to you or a friend or relative in the Nevada Department of Corrections??

The order in Vonseydewitz didn't become final until March 17, 2016, so the fallout from all of this likely has not yet been fully realized. If you think the above could apply to you or a loved one, or have any question at all if it applies, you may want to have the inmate discuss the matter with his or her caseworker - perhaps in writing so that there is some record of the inquiry. This probably presents the quickest way to have the inquiry addressed, and since time is at the heart of this entire issue, that probably is the main concern of the inmate involved.

However, if the inmate doesn't get an answer or doesn't get an answer he or she is happy with, there always remains the option to present the issue to the court system. A petition for writ of habeas corpus that challenges the time served pursuant to a judgment of conviction can arguably be filed at any time (See NRS 34.720, NRS 34.726) but there are good reasons not to delay, which could include (1) the fact parole eligibility is involved and the incentive is likely to obtain eligibility as soon as possible, but also (2) any eventual challenge under federal law (i.e. a federal habeas petition under 28 U.S.C. 2254) may possibly need to be filed within a year of the Vonseydewitz decision. That year may potentially be tolled while a state court petition is pending, but any time wasted prior to filing said state petition might be lost.

The general disclaimer on this page applies as always but again - this is general information regarding recent changes in the law concerning how prison sentences are computed and not legal advice to be relied upon. Conviction Solutions is available to be hired to assist with post-conviction and other criminal law and appellate matters.

Well here it is, the end of February and Conviction Solutions is up and running. I'd put a lot of thought into starting a business before, but to really grasp what it involves you almost have to go through the steps and do it. Leaving government work for self-employment is a big and somewhat scary decision. There's many blogs/articles/books that address doing this, and many of those were a big help. Above all else though, the basic advice to line up some clients or work before making the move is probably the most important advice I received and would be the #1 thing I'd share with anyone considering a similar move.

Now that the process of actually making that move and all the legwork that goes with it is behind me, I plan to focus on legal work and maybe this blog as well. So-called "wrongful convictions" have been all over the news of late and the need for qualified lawyers in the post-conviction field still seems to far exceed the available supply. There's rarely a "right" to an attorney in post-conviction matters, and while lawyers (myself included) remain available for hire, many people who have been incarcerated for any amount of time may not have the means to pay for legal services. Fortunately, some local courts have been generous in appointing attorneys on post-conviction matters, and that goes a long way to ensuring a level playing field in this complicated area of the law.

Conviction Solutions is one the only firms in Las Vegas with a focus on post-conviction matters, and the only place where you can benefit from the assistance of a Jamie Resch, a former government attorney with extensive post-conviction experience who also won a United States Supreme Court case. Contact Conviction Solutions today to discuss your post-conviction, criminal appeal, or criminal defense issue right away!

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Disclaimer - This web site is for informational purposes only and is not intended to convey legal advice. No attorney-client privilege is created by your use of this website. Submission of any information via this website by you does not create an attorney-client relationship and must not be considered confidential. Please do not submit confidential information via email or this website. Any statement of past results does not guarantee, warrant, or predict future cases. All rights reserved. Resch Law, PLLC d/b/a Conviction Solutions - a Nevada law firm.